HM Government is looking at reform of the UK’s copyright regime, last significantly updated back in 1988. One question is whether the defence of “fair dealing” is too narrowly drawn and should be closer, for example, to the US “fair use” doctrine. Could this make life easier for advertising “inspired” by existing copyright works? asks Tom Harding.
Topic: Intellectual property
Who: The Coalition Government
When: November 2010
Where: UK
Law stated as at: 1 December 2010
What happened:
On 4 November 2010, David Cameron announced the launch of a six-month independent review into how the UK's IP laws can better drive growth and innovation. As the Prime Minister put it, the aim is 'to see if we can make them fit for the internet age'.
The review aims to identify barriers to growth within the current IP framework, placing particular focus on how IP laws can be improved to help new business models arising from the digital age. Among the areas the review is expected to focus on are:
- IP and barriers to new internet-based business models;
- The cost and complexity of enforcing IP rights within the UK and internationally;
- The Interaction of IP and Competition law frameworks; and
- The costs and complexity to SMEs of accessing IP services to protect and exploit IP.
Fair use focus
In particular, the review will also look at what the UK can learn from the US' 'fair use' copyright exemption. This allows copyright material to be used in certain circumstances without the rights holder's permission.
In broad terms, US 'fair use' is far more flexible than current UK copyright exemptions that allow material to be used in specific circumstances only without consent (for example, for research and private study, criticism, review and news reporting).
US 'fair use' is judged on a case by case basis, centred around assessing the purpose and character of use (including whether commercial or not-for profit), the nature of the work in question, the amount and substantiality of the portion used and the effect of the use on the work's potential market. It is claimed the flexibility of the exemption significantly benefits the US economy, and is crucial to the operation of high tech businesses such as search engines and software developers in particular.
The obvious problem with trying to introduce such an exception into UK law however is that it is hard to see that the Coalition could do so without first seeking to amend the European Copyright Directive (2001/29/EC). The Directive sought to harmonise copyright law throughout the E. Without going back to this root legislative level therefore and securing EU Member State's agreement to a new (more general) exemption, a UK-only 'fair use' provision would effectively sit contrary to EU law and be hard to justify (both legally and politically).
Why this matters:
If 'fair use' was introduced, it would undoubtedly free up the degree to which copyright works may be used without permission than is currently available. In the US, the exemption has previously been successfully relied upon in the areas of commercial music and YouTube videos for example.
The potential scope for marketers and ad agencies may therefore (in certain circumstances) extend to allowing the use of elements of copyright works without permission in viral campaigns and social media marketing for example. It would also seem that to whatever extent the exemption applied to use of material in marketing and ads, it could only ever be of benefit to the creative industry as a whole in widening the net of materials available for campaigns without licence; no rights would seemingly be taken away.
The outcome of the review is not expected until at least mid-2011. However, even if the review argued in favour of seeking to introduce 'fair use' to the UK, it would realistically be several years until it found its way into law. That said, simply the review in itself is a positive move if it serves to spark a level of debate about how best to free up the UK's creative industries.
